Tuesday, June 1, 2010

Child Pornography, Law, and Ethics Education

A recent New York Times article about federal judge Jack Weinstein's view that the law requiring mandatory sentences for possession of child pornography is "unnecessarily cruel" raised three important points about ethics and ethics education for me.

The relationship between law and ethics. In ethics discussions with students and practicing physicians, participants often start by asking "what is the law?" My response is always the same. "First let's decide what we think is the right thing to do. Then we can ask about the law." If the law disagrees with our conclusion, that's a reason to reassess our analysis. After all, the law reflects society's view of how we should govern ourselves. Maybe our reasoning was wrong.

But maybe the law is wrong. Judge Weinstein abhors child pornography. But he believes that many of those prosecuted for possession of pornographic images do not present a risk to children, and that mandatory long term prison sentences are sometimes unjust. The judge now proposes to tell the jury what kinds of mandatory sentences guilty verdicts will require, so that the juries will consider the punishment as well as the crime.

This is not a typical court practice. Whether the judge's view of the degree of threat possession of child pornography poses or does not pose to children is correct, he'd making an important distinction between law and ethics.

Law tells us what's legal, but not necessarily what's right.

Wishful thinking about human nature and the effectiveness of "treatment." In a recent case, Judge Weinstein did impose the mandatory five year prison sentence. But he wasn't happy about it - "This is an unnecessarily harsh and cruel sentence under the circumstances. This defendant requires treatment and a stable life outside of prison..."

A social worker who wrote in response to the article spoke in a similarly optimistic way about mental health assessment and treatment:

For some, if not most, collectors, child pornography films are a relatively harmless way of dealing with feelings of sexual attraction to minors. Such individuals would not think of actually touching a child inappropriately.

For others, however, the viewing is a step on the way to actually performing the acts they view. To imprison the former group is a waste of taxpayer money; for the latter group, imprisonment is essential, and sentencing laws should be based not on a fixed time period but on the likelihood of repeating the abuse upon release.

To distinguish between those who will and those who will not move on to abuse of children, the court should request assessment by mental health professionals. Such assessment is also needed for the decision whether to release the prisoner.

But as Hamlet said to Horatio - "There are more things in heaven and earth than are dreamt of in your philosophy." Human nature is too complex and mysterious for our mental health categories to comprehend and reliably manage. We don't have effective treatments for sexual offenders, and our ability to predict dangerousness is limited at best. Recommending treatment reflects an admirably optimistic view of the fundamental goodness of our species, but it's not an evidence-based proposal. Ethics isn't just about values - it's about facts as well!

Emotion and moral judgment. The NYT article also tells about Judge James Graham, who sentenced a 67 year old man who had suffered a stroke to one day in jail, plus restrictions on computer use and registration as a sex offender. Judge Graham was quoted as follows:

When you have to sit there on the bench and look at someone like my stroke victim and say, 'I have to send this man to prison for six years,' it just doesn’t feel right....It’s not right.

In the Harvard Medical School class on medical ethics that just ended, I encouraged students to be very attentive to what they felt as they reflected on ethical matters, since emotional responses are relevant to our moral assessments. But we need to step back from those feelings to decide whether they reflect moral intuitions we should endorse or prejudices we should reject.

That's how I interpret Judge Graham's comment. The initial "it just doesn't feel right" reflects his emotional reaction. His repetition, after a momentary pause - "it's not right" - reflects, I believe (and hope) his assessment of the initial "moral intuition."